14 Comments

Loweeel:

Warren, I generally agree with you, but the fact that a real system has a non-zero error rate does not indict the whole system. There are certainly patents that go through that shouldn't (and this was worse in the late 90s/early 2000s), and ones that get rejected that shouldn't. And this is also why there's post-grant review and reexamination.

But the PTO gets over 500,000 applications per year for utility patents alone (and that's not even considering the backlog).

What sort of error rate is acceptable? Because this is an anecdote, not data.

anonymouse:

Does it really? With 500k applications filed each year, just spending four more hours per application total from initial examination to final abandonment or issuance would require hiring another 1,000 patent examiners. That's big bucks for little value added. And that assumes each examiner works 40 hours week, 50 weeks a year, doing nothing but examining patents -- no time for training, admin, etc., all the other time-sucks inherent in any job.

Two-bit hustlers like this are not the reason you are seeing anti-troll publicity and legislation. This big push is funded from the ground up by big companies that don't want big-dollar lawsuits from independent inventors. Their nightmare case is a small but real inventor with a real invention that they steamrolled during negotiations, e.g., took his/her technology and implemented, and said "so sue me."

anonymouse:

Carl:

My experience with software patents is they've stifled, not encouraged innovation. There are software patents for completely obvious processes such as transforming data, or holding thread specific objects in a thread local cache. And, speaking from experience, I can say that there are companies that tie others up in court for a long time over these useless patents. Software should be copyrightable only, not patentable.

Loweeel:

Software, per se, isn't patentable. But a useful, novel, and non-obvious system, apparatus, or method isn't excluded from statutory subject matter simply because it happens to be implemented in whole or in part in software, as opposed to the functional equivalent implementation in hardware.

The particular expression of an implementation is copyrightable, but copyright doesn't protect ideas, it protects expressions in fixed format, so copyright is at best a woefully poor and imprecise substitute for patents. (What would make more sense is a sui generis protection for software innovations, along the lines that current statute provides for semiconductor masks and boat hulls). A categorical exclusion of "software" from patent protection would not only raise ex post facto and takings issues at this point, but would be extremely difficult to implement in practice. How much software is too much? Do the claims have to recite the software limitation specifically, or is it enough for proposed subject matter ineligibility that it could be done in software, or that actually making what is claimed work requires software somewhere along the line?

Your complaints about obvious processes have to do with the obviousness requirement, not the subject matter of software to which it is misdirected, as they are entirely separate issues. Banning "software patents" won't prevent obvious patent claims from being allowed, and obviousness can be and is enforced without resort to subject matter eligibility concerns..

I think the situation is such that it's not just one, easily fixed problem. It's a bunch of things. A good part of it is the brokenness of the whole tort system in the US. A lot of what's wrong in this case isn't per se about patent law; it's that the American legal system makes it very easy to sue people without risk for small bullshit reasons, and to make the process of being sued so expensive for the defendant that settling without a fight is cheaper.

As to fixing the patent system:

1) The concept of "obviousness" needs to be strengthened, and taking down bad patents for this needs to be easier. Legal precedent has ended up eroding "obviousness" as the law tends to do, and while steps have been made to make patents more easily challenged, there's more work that can be done here.

2) The patent office's incentives in which they're essentially paid to grant as many patents as possible with as little review as possible need so stop. (Again, some work has been done here)

3) Crucially, a lot of the problems come from patents being stretched beyond the original intention of the patent examiner that approved it. I'm pretty sure in this case the patent examiner didn't intend to allow a claim against "scanning and emailing a document"; the patent describes a particular invention which someone is managing to leverage into a more general claim. Do we need some way of quickly cutting off patent claims that are stretching so far?

No, the pressure is coming from big companies that are terrified that every single line of code any of their developers ever write could infringe some bullshit patent that someone got. Known patents in the field are one thing. It's the fact that the patent system doesn't allow independent invention but does allow patenting so many little things and then stretching the definition of them beyond all recognition.

If a company goes "Screw you, little inventor, we don't have to pay you!" it's one thing.

It's quite another for your entire field of work to be a goddamn minefield of potentially patented things and you have no idea where the mines are.

Loweeel:

1) You're flat-out wrong about the law of obviousness, especially over the bulk of the last decade. See KSR v. Teleflex, and the follow-on cases. Even before KSR, the Federal Circuit indicated in Dystar that TSM was not a rigid test.

2) Again, this is not the way things work now, and hasn't really ever been the case. "As little review as possible" was never an accurate description, nor were the incentives for granting patents alone. They were for final determinations, which were both grants of allowance and final rejections. (As a hypothetical, how else does one measure whether a patent examiner is being sufficiently productive? What's the appropriate metric?)

3) This doesn't really make sense. People always assert their own rights broadly, and the examiner's intent is irrelevant. What matters in claim construction is what the applicant has said and amendments during prosecution. The way you figure this out is to read the claims, read the specification, and pull the file history. Patents are inherently forward looking -- you can never tell what it will or won't read on years down the road, and whether or not it is explicitly contemplated isn't really an issue, as long as it's within the scope of the claims. Part of the reason that these guys have gotten so little traction is that their position is so absurd. And of course, the broader the position that a patent holder takes, the broader the scope of prior art that becomes available to invalidate the patent.

As for claim scope, that's at least part of what the new Inter Partes Review procedure is about -- there's at least a preliminary claim construction to consider the scope of prior art, and the parties take positions on claim scope without having to actually file suit in court, and with a more permissive standard of review at the PTO. And the issue is that courts deal with "cases and controversies", not legal rights in the abstract. People receiving these sorts of demand letters can often bring a declaratory judgment suit.

John O.:

I think the first two comments are focusing the argument on the broken system we have for patents in the wrong place. The PTO office is busy and probably will never have the manpower to get every patent application correct. It requires painstaking research through the patent archives that more manpower alone could never resolve. I consider the real problem is the legal burden on courts to be misplaced. It should always be the duty of the patent holder to prove their claim is legitimate against counter-complaints in a patent dispute, but not only that the patent has to describe something actually tangible instead of a vaguely worded to apply to almost anything it can be attached to. Patents have changed considerably for the worst in the electronics field where they're used more as an excuse to extract economic rent than do anything actually useful.

The Apple-Samsung patent cases are a prime example of the purpose is to extract economic rent. Both sides deliberately grabbed every patent they could get and sued each other for patent violations entirely to hamstring each other for stupid nonsense. While at the same time large sums of company wealth is lost in the ensuing court disputes; this is not good long term business.

Carl:

"but copyright doesn't protect ideas, it protects expressions in fixed format". But I think that's what you need in software. Otherwise, because of how variable software implementations are, you end up, effectively, patenting ideas.

"How much software is too much?" How much music is too much to violate a copyright on a song? Besides, we already do code checks for copyright violations in software. I don't know how much is considered too much, but the code checking software provides guidelines that companies follow. I have always just assumed those thresholds are based on legal precedent.

Zeeb:

There's a company suing podcasters -- select podcasters with a specific net worth -- because they claim patent infringement. One podcaster has spent $50k just trying to get the lawsuit moved out of Podunk, TX and into Cali where the laws make sense. It'll be umpteen $$$s later just to defend it.

marque2:

The patent office no longer looks at patents. Shouldn't cost that much for a rubber stamp. What happened is sometime after the Apple - Microsoft verdict on look and feel - the supreme court decided that looks, feels, processes and algorithms can all be patented basically because there is no law against it.

Congress needs to update the law to restrict these types of patents. Congress also needs to update copyright law which can effectively keep a book or movie or song out of public domain for 130 years Or even indefinitely with all the special extension laws.

mesocyclone:

You are right. Software and business methods didn't use to be patentable.

A good solution would allow some sort of patent protection for truly novel ideas, but not 20 years worth.

The PTO granted all sorts of obvious patents in the past, because the Supreme Court changed the rules to allow software and business methods to be patented. You could be the first to patent the world's oldest profession, and gain remarkable monopoly rights for (then) 17 years.

As a retired software professional, I've seen a lot of the patents asserted in recent litigation, and almost none of the would have been granted in a sane world. They were obvious - the sort of thing you would expect a sophomore CS student to come up with in answer to a homework problem.